Gorsuch ‘Plagiarism’ Story is Much Ado About Absolutely Nothing

In the past couple of days, both BuzzFeed and Politico ran stories subtly attempting to insinuate Judge Gorsuch was involved in misdoings with his book, The Future of Assisted Suicide and Euthanasia. They fall just short of accusing Judge Gorsuch of plagiarism, but read between the lines.

“The section at issue in his book, The Future of Assisted Suicide and Euthanasia, is a brief one: It is a summary of the facts and ruling in the 1982 case of Baby Doe, a baby born in Indiana with Down syndrome. It takes up only two paragraphs and seven endnotes in a book that covers more than 300 pages, including endnotes.”

After an analysis of around the 140,000 words in Judge Grouch’s book, BuzzFeed found…300 or so offending ones? Really, 300 words is the big reveal here?

In particular, the offending passage BuzzFeed found is pretty much a straight recitation of facts. There are only so many ways to describe a thing. Besides, paraphrasing case law and analogous situations is something lawyers and judges do all the time. It’s not some revelation, all lawyers do it.

Keep in mind, Gorsuch has been involved in the legal world since the early 90s. The man has written literally millions of words about the law. And this is the worst instance they could be dredge up? Not to mention when BuzzFeed contacted the author of the allegedly plagiarized passage, she responded as follows:

“I have reviewed both passages and do not see an issue here, even though the language is similar. These passages are factual, not analytical in nature, framing both the technical legal and medical circumstances of the ‘Baby/Infant Doe’ case that occurred in 1982. Given that these passages both describe the basic facts of the case, it would have been awkward and difficult for Judge Gorsuch to have used different language.”

When multiple lawyers or judges describe a situation or write a brief, they’re going to read similarly because they’re expressing ideas on a shared topic. Not because one is sneakily trying to copy from another.

Furthermore, it’s incredibly unlikely Judge Gorsuch actually did the citation work himself. Judges have law clerks who actually do their citation work. When a lawyer writes an article for law review, there will be student editors who will handle citations. And in writing a book, you’ll have a team of editors going through and checking for facts, citations, line edits, grammar, etc. When my book was published, despite half dozen people reviewing it, there were still a number of errors in the final, published version.

Don’t get me wrong, in looking at the passages, it seems like this was use of uncredited work. But given the scope of the work, and the amount of people involved, I’d wager it was a mistake, not intentionally attempting to skirt the rules of publishing. If anything, this is a bit of technical plagiarism due to the weird conventions of academic publishing. They don’t favor block quotes. Which is how Judge Gorsuch usually writes because, y’know, Judge. Academic publishing prefers everything to be re-written and cited. Which is what Judge Gorsuch did with the entire rest of his book.

All in all, this is a story told by an idiot, full of sound and fury, signifying nothing.

(That’s a sentence I completely came up with myself by the way. Totally original.)

Keith Lee is the founder of Associate’s Mind, a popular legal blog. Associate’s Mind has been mentioned in the New York Times, Wall Street Journal, Washington Post, BBC, ABA Journal and many other media outlets. In 2013, Keith wrote The Marble and The Sculptor: From Law School to Law Practice, which became an ABA bestseller. He practices law in Birmingham, AL. You can follow him on Twitter, @associatesmind

This is an opinion piece. The views expressed in this article are those of just the author.